It can be imagined that there are more than a few liberals and conservatives, who found their world turned a bit upside down. What I’m referring to is the interview by Supreme Court Justice Antonin Scalia, on Fox News. In it, he indicated what many understand when discussing rights. That is, there is no such thing as a right that permits absolute action. With every right comes the responsibility to use this right appropriately, and with many rights there can be a legitimate need to limit its scope. Namely, Scalia mentioned the right to bear arms is a right that has limits.
This is not new legal ground. In Schenck v. United States, Justice Oliver Wendell Holmes wrote the now famous quote that a person does not, in the name of free speech, have a right to yell “Fire!” in a crowded theater, if no such fire exists. His decision, which the court held unanimously, prohibited the distribution of flyers opposing the draft during World War I, under the belief they presented a “clear and present danger” to the United States.
So too, in this interview, Scalia suggested that the “right to bear arms” is not an unlimited right. Real Clear Politics quoted Scalia on Fox News in this way: “Obviously, the [second] amendment does not apply to arms that cannot be hand-carried. It’s to keep and bear. So, it doesn’t apply to cannons. But I suppose there are handheld rocket launchers that can bring down airplanes that will have to be (looked at) … it will have to be decided,” Supreme Court Justice Antonin Scalia said on “FOX News Sunday.”
But Scalia’s comments made for strange bedfellows. There were those on the right who immediately sought to suggest that a lot was being read into the phrase, “We’ll see.” And, there were those on the left who had a new champion for the reconsideration of limitations on guns.
This constitutional debate has a lot to do with how we understand a “right”, and how we choose to apply a notion of what a “right” means in the context of the constitution and the attempt to understand its application in the modern day. As always, it is probably safe to rule out the extremes. It is not possible under the constitution to ban all guns. Nor is it forbidden to have any regulation of guns. However the debate unfolds, it seems that these two extremes provide the boundaries of what is permissible.
Perhaps of most importance is the basic understanding Scalia outlines at the beginning, namely that there are few rights that are absolute. It is not the case that the right to free speech, for example, gives us the ability to “say whatever we want.” We cannot slander another human being, for example, by invoking the first amendment.
At the same time, the second amendment does not give us the ability to unlimited use of all guns and weapons. Scalia indicates it must be carried (the right to bear arms) so it could not be interpreted that the constitution gives us the right to cannons. But he seems to at least raise the question a stop further. Does the second amendment give us the right to use a hand held rocket launcher? Does the right to bear arms give us the right to buy unlimited quantities of ammunition? Does the second amendment give us the right to ban automatic assualt weapons?
It does seem the Schenck v. United States decision at least provides a way to begin to examine the issue of gun control, or regulation of guns, because it examines the question of how absolute a right is. Put simply, a summary suggests that the Court had no difficulty in seeing a diminished right to free speech during war. Writes Holmes, ““The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing panic.” And, “The question in every case is whether the words used are used in such circumstances and are of such nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Now consider the present case of gun violence. It seems like an appropriate question might be, are there such substantive evils in the current state of gun use and violence in the United States so as to justify diminishing the right to bear arms? It would seem so.
To be sure, when dealing with a constitutional right, the bar for diminishing it should be high. But does a high bar mean an impossible one? Can there be a reasoned debate on this topic? That is unclear. As with so many difficult issues of today, the loudest voices tend to be those who take the most extreme (and often irreconcilable) positions.
There is room for legitimate debate. England, which bans handguns, has a much lower rate of gun violence than the United States. But Switzerland, which has the highest per capita gun ownership in the world, has a much lower rate of gun violence than the United States as well.
So what to do about gun violence in America? Perhaps raising the issue of gun control, or limiting the use and sale of certain guns is raising only part of the issue. It is true we have a lot of gun violence, especially when compared to other developed nations. And, it is hard to deny that the tremendous availability of guns should be considered in any solution to the problem of crime. But while it seems reasonable to limit access to some types of guns, and perhaps even a limit as to how much ammunition can be purchased online (or if online sales should even be permissible), focusing solely on the questions of guns alone might simply be a simplistic solution to a much more complex problem.
We have simply written off our inner cities in many respects. The stories of gun violence here in Chicago, while not as sensational as the recent shootings in Aurora, are so common and pervasive that it is hard to be shocked by them any more. There are clearly sections of the city that have been written off in many peoples’ minds. There are too many areas where education is not viewed as an opportunity for improvement because we do not put the necessary resources in place (and not just financial resources), where the economy makes drug sales and gang life appear to be the only available way to live, and too many neighborhoods that are not talked about because the residents are black or latino.
The “school to prison” pipeline has been researched quite a bit in educational circles. This is not simply an urban problem, but might more properly be understood as a socio-economic problem, since many of the challenges related to education are magnified in low income areas. So while limiting high powered weapons might be part of the solution, it is just that: only part of the solution. Significant educational reform that addresses the needs of individual students, that recognizes that teaching in a low income neighborhood requires a different set of skills that teaching in a well to do suburb is also part of the problem.
Providing economic opportunity in many of these communities is also part of the solution. It is quite hard to motivate a student to stick it out in school for some long term future benefit. It is more than a little challenging to convince a student that working hard today, for little tangible reward, when the visible aspects of the neighborhood are empty store fronts and wealthy drug dealers.
All of this demands a new respect for the human being. But an honest respect. While there is inherent human dignity in each of us, there are also human beings who commit evil. Not every effort put forth by human beings deserves the blue ribbon or a trophy. Sometimes humans beings are lazy, dismissive of other ideas, and do not strive to improve their lot in life.
It also demands that each of us strive to learn as much as possible about issues. We cannot succumb to forming opinions based upon the “thirty second sound byte.” While it is true that guns do not kill people, people do”, a person using a gun is far more likely to kill another person than a person using a knife. It is also true that violent movies and video games do not, of themselves cause people to commit violent crimes. But the more we become desensitized to violence, the more we get used to its existence, the more we remove the consequences of violence from the view of people, the easier it becomes to see the violence on the South and West Sides of Chicago as having no consequence as well.
But our city, our country, our world is in need of people willing to do the hard work of developing solutions. There is simply a need to resist the “knee-jerk” solution to find the solution that makes everyone’s life more livable.